A High Court decision concerning the Refugee Status Assessment (RSA) process may undermine the government's offshore processing system.
On November 11, the court upheld a case put by two Tamil asylum seekers, who'd had their claims for asylum rejected.
Known as M61 and M69, the Tamils put the case that they had been denied the right to challenge their rejected claims in court.
The current two-stage RSA "offshore" process discriminates between asylum seekers who arrive by boat, known as "irregular arrivals", and those who arrive by other means, such as by plane.
This distinction between two types of asylum seekers was implemented under the Howard government a decade ago. Legislation was introduced that excised thousands of islands from Australia's migration zone. The stated aim of this legislation was to deny boat arrivals the right to appeal rejected refugee claims in court.
Any "irregular arrival", therefore, was subject only to the RSA offshore process, allowing no judicial review of their claims. The ultimate decision to deport failed refugee claimants was left to the immigration minister's discretion.
The High Court decision, however, said that aspects of the present system were invalid. It ruled that asylum seekers should be afforded procedural fairness in the review of the assessment of their claims. The court now has the power to give declaratory relief to any offshore entrants who apply, but still cannot trump the minister's ultimate decision.
The High Court found that one of the errors of the RSA process is that both the first stage RSA decision maker and the second stage reviewer treated the Migration Act and decisions of Australian courts as no more than guides to determining the issues presented. In fact, each was bound by the Act and by previous court decisions. This is general to all those who have been through the RSA process.
Lawyer and Refugee Action Coaliton (RAC) member Julian Gormly told Green Left Weekly: "The High Court decision does not restore the rights of judicial review to offshore entrants taken away by the Migration Act. So only the High Court can give declarative relief … the High Court may be swamped with applications for declaratory relief, and also to resist deportations.
"The RSA process must take into account relevant decisions of all Australian courts, but this does not mean that those courts have been given jurisdiction to review the RSA process."
RAC spokesperson Ian Rintoul told GLW: "We will have to wait to see what arrangements the government puts in place to deal with the decision.
“They could simply arrange to redo all the decisions or they could insist that every asylum seeker go to court to show there has been error or lack of procedural fairness — big job for us, big problem for the High Court and government.
“The government could potentially try to go ahead with deportations and it will be the High Court that could rule for an injunction."
Immigration minister Chris Bowen told ABC radio’s AM program that 150 people have had their refugee claims rejected and could make appeals to the High Court. About 1000 have had their initial claim rejected.
Not ruling out the use of legislation to get around the High Court ruling, he added: "What we need to do is to assess, for example, whether we need to have a more robust refugee assessment process and a merits reviews process so that chances of appeal for matters of procedural fairness are minimised; or whether we need to streamline the current system further to reduce the amount of time that it would take to get to appeal.
“They are all options that I would need to work through and need to make recommendations to the government on."
Commenting on the High Court decision, Greens Senator Sarah Hansen-Young said on November 11: “This failed regime, which was brought in by the Coalition under John Howard with the support of the ALP, and continued under this government, was never about what was right under domestic or international law — it was always about putting people out of legal sight, and taking away their ability to access protection as refugees.
“This decision shows we need full and equal legal protection for all asylum seekers. It also calls into question not only the future of processing at Christmas Island, but also puts in serious doubt the government’s plans for further offshore processing in East Timor or elsewhere.
“The Greens will introduce a bill next week that would repeal the excision policy from the books and introduce proper judicial review, challenging the presumption of detention."
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